EMPLOYMENT AGREEMENT
Exhibit
10.3
This
Employment Agreement (the "Agreement"), entered into effective as of the 15th
day of April, 2008, by and between RCI Entertainment (Media Holdings), Inc., a
Texas corporation (the "Company"), and XXX XXXXX
("Executive").
W
I T N E S S E T H:
WHEREAS, Company desires to
employ Executive as provided herein; and
WHEREAS, Executive desires to
accept such employment.
NOW,
THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Employment. Company
hereby employs Executive and Executive hereby accepts employment with Company
upon the terms and conditions hereinafter set forth.
2.
Duties. Subject to
the power of the Board of Directors of Company to elect and remove officers,
Executive will serve the Company as its President and will
faithfully and diligently perform the services and functions relating to such
office or otherwise reasonably incident to such office, provided that all such
services and functions will be reasonable and within Executive's area of
expertise. Executive will, during the term of this Agreement (or any
extension thereof), devote his full business time, attention and skills and best
efforts to the promotion of the business of Company. The foregoing
will not be construed as preventing Executive from making investments in other
businesses or enterprises provided that (a) Executive agrees not to become
engaged in any other business activity that interferes with his ability to
discharge his duties and responsibilities to Company and (b) Executive does not
violate any other provision of this Agreement.
3.
Term. Subject to
the terms and conditions hereof, the term of employment of Executive will
commence as of the date hereof (the "Commencement Date") and will end on that
date in the year 2011, unless earlier terminated by either party pursuant to the
terms hereof. The term of this Agreement is referred to herein as the
"Term."
4.
Compensation and Benefits
During the Employment Term.
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(a)
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Salary. Commencing
upon the date of this Agreement, Executive will be paid an annual base
salary of $250,000.00, payable bi-weekly (the "Salary"). At any
time and from time to time the Salary may be increased for the remaining
portion of the term if so determined by the Board of Directors of Company
after a review of Executive's performance of his duties
hereunder.
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(b)
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Bonus. As
further compensation, Executive will be eligible for bonuses as determined
from time to time by the Board of
Directors.
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(c)
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Expenses. Upon
submission of a detailed statement and reasonable documentation, Company
will reimburse Executive in the same manner as other executive officers
for all reasonable and necessary or appropriate out-of-pocket travel and
other expenses incurred by Executive in rendering services required under
this Agreement.
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(d)
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Benefits; Insurance.
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(i)
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Medical,
Dental and Vision Benefits. During this Agreement,
Executive and his dependents will be entitled to receive such group
medical, dental and vision benefits as Company may provide to its other
executives, provided such coverage is reasonably available, or be
reimbursed if Executive is carrying his own similar
insurance.
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(ii)
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Benefit Plans. The
Executive will be entitled to participate in any benefit plan or program
of the Company which may currently be in place or implemented in the
future.
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(iii)
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Other
Benefits. During the Term, Executive will be entitled to
receive, in addition to and not in lieu of base salary, bonus or other
compensation, such other benefits and normal perquisites as Company
currently provides or such additional benefits as Company may provide for
its executive officers in the
future.
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(e)
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Vacation. Executive
will be entitled to two weeks paid vacation each year of this
Agreement.
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5.
Confidentiality and
Non-Competition.
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(a)
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Confidentiality. In
the course of the performance of Executive's duties hereunder, Executive
recognizes and acknowledges that Executive may have access to certain
confidential and proprietary information of Company or any of its
affiliates. Without the prior written consent of Company,
Executive shall not disclose any such confidential or proprietary
information to any person or firm, corporation, association, or other
entity for any reason or purpose whatsoever, and shall not use such
information, directly or indirectly, for Executive's own behalf or on
behalf of any other party. Executive agrees and affirms that
all such information is the sole property of Company and that at the
termination and/or expiration of this Agreement, at Company's written
request, Executive shall promptly return to Company any and all such
information so requested by
Company.
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The
provisions of this Section 5 shall not, however, prohibit Executive from
disclosing to others or using in any manner information that:
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(i)
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has
been published or has become part of the public domain other than by acts,
omissions or fault of Executive;
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Employment
Agreement - Page 2
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(ii)
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has
been furnished or made known to Executive by third parties (other than
those acting directly or indirectly for or on behalf of Executive) as a
matter of legal right without restriction on its use or
disclosure;
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(iii)
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was
in the possession of Executive prior to obtaining such information from
Company in connection with the performance of this Agreement;
or
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(iv)
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is
required to be disclosed by law.
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(b)
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Non-Competition. Executive
agrees that he will not, for himself, on behalf of, or in conjunction with
any person, firm, corporation or entity, either as principal, employee,
shareholder, member, director, partner, consultant, owner or part-owner of
any corporation, partnership or any other type of business entity,
directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership,
management, operation, or control of any media publication publishing any
sexually oriented industry publication (“Adult Entertainment Business”) or
is in any business similar to or competitive with the Adult Entertainment
Business presently conducted by the Company anywhere in the United States
within a twenty (20) mile radius of any Adult Entertainment Business of
the Company or any Adult Entertainment Business of the Company under
construction, under contract, in development or leased by or to the
Company, for a period of one year (the “Non-Compete Period”) from the
termination of this
Agreement.
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Executive
agrees not to hire, solicit or attempt to solicit for employment by Executive or
any company to which he may be involved, either directly or indirectly, any
party who is an employee or independent contractor of the Company or any entity
which is affiliated with the Company, or any person who was an employee or
independent contractor of the Company or any entity which is affiliated with the
Company within the one year period immediately following the termination of this
Agreement.
Executive
acknowledges that he has carefully read and considered all provisions of this
Agreement and agrees that:
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(i)
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Due
to the nature of the Company's business, the foregoing covenants place no
greater restraint upon Executive than is reasonably necessary to protect
the business and goodwill of the
Company;
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(ii)
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These
covenants protect the legitimate interests of the Company and do not serve
solely to limit the Company's future
competition;
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(iii)
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This
Agreement is not an invalid or unreasonable restraint of
trade;
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(iv)
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A
breach of these covenants by Executive would cause irreparable damage to
the Company;
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(v)
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These
covenants are reasonable in scope and are reasonably necessary to protect
the Company's business and goodwill which the Company has established
through its own expense and effort;
and
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(vi)
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The
signing of this Agreement is necessary as part of the consummation of the
transactions described in the
preamble.
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Employment
Agreement - Page 3
6. Indemnification. The
Corporation shall to the full extent permitted by law or as set forth in the
Articles of Incorporation and the Bylaws of the Company, indemnify, defend and
hold harmless Executive from and against any and all claims, demands,
liabilities, damages, loses and expenses (including reasonable attorney's fees,
court costs and disbursements) arising out of the performance by him of his
duties hereunder except in the case of his willful misconduct.
7. Termination. This
Agreement and the employment relationship created hereby will terminate (i) upon
the death or disability of Executive under section 7(a) or 7(b); or (ii) with
cause under Section 7(c).
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(a)
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Disability. The
Company shall have the right to terminate the employment of the Executive
under this Agreement for disability in the event Executive suffers an
injury, illness, or incapacity of such character as to substantially
disable him from performing his duties without reasonable accommodation by
the Company hereunder for a period of more than one hundred eighty (180)
consecutive days upon the Company giving at least thirty (30) days written
notice of
termination.
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(b)
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Death. This
Agreement will terminate on the Death of the
Executive.
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(c)
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With
Cause. The Company may terminate this Agreement at any
time because of (i) Executive's material breach of any term of the
Agreement, (ii) the determination by the Board of Directors in the
exercise of its reasonable judgment that Executive has committed an act or
acts constituting a felony or other crime involving moral turpitude,
dishonesty or theft or fraud; or (iii) Executive's gross negligence in the
performance of his duties hereunder, provided, in each case, however, that
the Company shall not terminate this Agreement pursuant to this Section
7(c) unless the Company shall first have
delivered to the Executive, a notice which
specifically identifies such breach or misconduct and the executive shall
not have cured the same within fifteen (15) days after receipt of such
notice.
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8. Obligations of Company Upon
Termination. In the event of the termination of
Executive's employment pursuant to Section 7 (a), (b), or (c), Executive will be
entitled only to the compensation earned by him hereunder as of the date of such
termination (plus life insurance or disability benefits if applicable and
provided for pursuant to Section 4(c)).
9. Waiver of
Breach. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
10. Costs. If
any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party will be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
he or it may be entitled.
11. Notices. Any
notices, consents, demands, requests, approvals and other communications to be
given under this Agreement by either party to the other will be deemed to have
been duly given if given in writing and personally delivered or within two days
if sent by mail, registered or certified, postage prepaid with return receipt
requested, as follows:
Employment
Agreement - Page 4
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If
to Company:
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RCI
Entertainment (Media Holdings), Inc.
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00000
Xxxxxx Xxxx
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxx Xxxxxx, CEO/President
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If
to Executive:
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Xxx
Xxxxx
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___________________________
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___________________________
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Notices
delivered personally will be deemed communicated as of actual
receipt.
12. Entire
Agreement. This Agreement and the agreements
contemplated hereby constitute the entire agreement of the parties regarding the
subject matter hereof, and supersede all prior agreements and understanding,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
13. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during this Agreement, such provision
will be fully severable and this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision never comprised a part hereof;
and the remaining provisions hereof will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal, invalid
or unenforceable provision there will be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
14. Arbitration. If a
dispute should arise regarding this Agreement the parties agree that all claims,
disputes, controversies, differences or other matters in question arising out of
this relationship shall be settled finally, completely and conclusively by
arbitration in Houston, Texas in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "Rules"). The
governing law of this Agreement shall be the substantive law of the State of
Texas, without giving effect to conflict of laws. A decision of the
arbitrator shall be final, conclusive and binding on the Company and
Executive. Any arbitration held in accordance with this paragraph
shall be private and confidential and no person shall be entitled to attend the
hearings except the arbitrator, Executive, Executive's attorneys, a
representative of the Company, the Company's attorneys, and advisors to or
witnesses for any party. The matters submitted to arbitration, the hearings and
proceedings and the arbitration award shall be kept and maintained in the
strictest confidence by Executive and the Company and shall not be discussed,
disclosed or communicated to any persons except as may be required for the
preparation of expert testimony. On request of any party, the record
of the proceeding shall be sealed and may not be disclosed except insofar, and
only insofar, as may be necessary to enforce the award of the arbitrator and any
judgement enforcing an award. The prevailing party shall be entitled
to recover reasonable and necessary attorneys' fees and costs from
the non-prevailing party and the determination of such fees and costs and the
award thereof shall be included in the claims to be resolved by the arbitrator
hereunder.
Employment
Agreement - Page 5
15. Captions. The
captions in this Agreement are for convenience of reference only and will not
limit or otherwise affect any of the terms or provisions hereof.
16. Gender and
Number. When the context requires, the gender of all words
used herein will include the masculine, feminine and neuter and the number of
all words will include the singular and plural.
17. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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COMPANY:
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RCI
ENTERTAINMENT (MEDIA HOLDINGS), INC.
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By:
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/s/ Xxxx
Xxxxxx
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Xxxx
Xxxxxx, CEO/President
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EXECUTIVE:
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By:
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/s/ Xxx
Xxxxx
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Xxx
Xxxxx
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Employment
Agreement - Page 6
